Employer Based Testing
If you are applying for a job, on probation or incarcerated, you probably will be tested at some time in the very near future. Some of you who already have a job and have been employed at that job for many years might also suddenly be subject to a random or post accident drug & alcohol test.
Most employers are using drug tests to help reduce liability and insurance costs. If you have an accident at work, injure someone, and are found to be using banned substances while at work, your employer is liable. Your employer is liable for everything you do at work within reason, (if you go berserk and start shooting everyone in site with no prior indication of mental instability, your employer may not be liable). Also, the Federal Government passed what is known as the “Drug Free Workplace Act”. That means that if a business wants to win a government contract, they must have a comprehensive drug free workplace policy in place, and in force, prior to beginning work on any government contract. Some even require an annual drug test for any employees working on a government facility.
Maybe you were chosen for a Random. How did your name come up? Well, to be chosen for a random test, all employee names (employee numbers, social security numbers, whatever) are entered into a random numbering computer program. (or done by hand, using a random numbering table). The employer sets the quantity of employees to be chosen. For example: If the employer has 1000 employees, and wants to test 20% per year, they would draw 200 names out and test them throughout the calendar year. Most of the time, the draw is made monthly, so the employer would select approximately 16 – 17 employees each month, test them during that month, then draw another 16 – 17 the next month. If your name or number came up, you are tested.
If you are drawn and tested say in July, your name (or number) is then put back in so you would have the possibility of being drawn in August or any subsequent month. Just because you are tested once, doesn't mean you can't be drawn again and again. The probability of being drawn 2 or 3 months in succession is remote, but possible.
The Department of Transportation requires those employees who are in a Safety Sensitive Position be tested at the annual rate of 50%. That means that everyone working in a DOT regulated job will be tested (on average) once every other year.
Safety Sensitive Position:
Operators of Commercial Motor Vehicles over 26,000 lbs GVW inclusive of a towed unit with GVW of 10,000 lbs,
1. -or has a GVW rating of more than 26,000 lbs
2. –or is designed to transport 16 or more passengers including the driver,
3. –or is of any size and is used to transport hazardous materials in quantities requiring placards under the Hazardous Materials Regulations (49 CFR, Part 172, Subpart F).
Operators, maintenance or emergency workers of pressurized or flammable pipeline.
Aircraft pilots, mechanics and flight crew. Railroad engineers and conductors.
Some specialized jobs within the Coast Guard. This includes Owner/Operators of semi-trucks. They must find a consortium of other drivers and enter their name for the possibility of being drawn for random controlled substances and alcohol testing.
Alcohol testing can only be conducted while the employee is currently doing; just prior to starting; or immediately after completing; a safety sensitive task. Controlled substances testing (drug test) can be done at any time. An employee can even be called in on his/her day off to be tested for controlled substances. Driving to and taking a controlled substances or alcohol test is considered “on duty” time, and is to be paid accordingly, and it also counts toward the “driving hours”. A driver cannot be tested if the time allowed for testing puts him/her over the allotted hours for driving.
For those of you not in a safety sensitive position, (bankers, cashiers, assembly line workers, laborers, etc…) you can be called for random testing while at work. Most non-DOT regulated employers do not test for alcohol, but some (about 10%) do. Alcohol is a legal drug, but you cannot be under the influence of alcohol while at work. Same principle applies to prescription medications and medical marijuana. Just because it is legal for you to take a medication or substance, doesn't mean that your employer has to allow you to be under the influence of it on the job.
I once tested a truck driver, a random test (his number came up), with a prior on-the-job injury, covered by Workers' Compensation Insurance. He was taking Tylenol 3 with codeine for pain because he had broken bones. Tylenol 3 with codeine is a banned substance because it contains opiates. He was tested, found to be positive for opiates and sent home until he no longer needed the medication. He could not drive his truck until he healed enough that he could drive without pain medication other than an over-the-counter type of pain reliever. This driver had a legal right to take the drug, he just could not drive or work while taking it. The same applies for medical marijuana. You may have a recommendation from a doctor to smoke marijuana to relieve your pain or nausea, but your employer cannot allow you to perform a safety sensitive position and does not have to allow you on the job while under its influence.
Applying for a job is stressful in itself. Add the drug test, and if you are a regular or even an occasional marijuana user, the entire process can seem unbearable. The pre-employment drug test can take place at anytime; from the first interview to several weeks after you start work for a new company. The test can be conducted on site (at the employer's facility) or you could be sent to a “collection facility”. Someone can be called in to perform the test, or the company may have a qualified person “in house” to conduct the test right then and there. The best defense for a pre-employment controlled substances test is the same for an alcohol test. Don't use an illegal substance before applying for a job. You are the one who controls this situation. You know which company you're are applying to and when you will be submitting your application. You know you are applying for work, so it stands to reason you can control whether you are found positive or negative on a pre-employment drug test. It is simple. Don't use illegal substances before applying, and you will have absolutely no worries about a drug test.
If you apply to a company and begin work without being subjected to a pre-employment drug test, read the company literature very carefully. Ask around (discretely) to your co-workers. Don't use an illegal substance until you know for sure whether or not the employer uses drug testing. Most employers will have employees sign a waiver acknowledging and agreeing to a drug test “on demand”. Some employers who have you sign such a waiver, do not utilize drug testing at all. Some do. You need to do some investigating to find out for sure before using an illegal substance. It is always a good idea to ask for a copy of everything you sign before starting work, including your W-4 form for taxes, I-9 form for immigration, orientation paperwork, etc… Ask for a copy, take the paperwork home and take the time to really read through it. You don't have to tell the employer why you want a copy. Most employers will see that as being diligent and through – not bad traits for a new employee to possess.
Return-to-duty and Follow-up
If you were found positive on a previous controlled substance test (or found to have adulterated or substituted), you may be subject to one of these tests. The DOT requires a return-to-duty test be done after you have successfully completed a Substance Abuse Professional's (SAP) recommendation for treatment and/or counseling for failing a previous controlled substances test. These are required to be observed tests and you must receive a verified negative before being allowed to return to your safety sensitive position.
Follow-up tests are conducted after you have returned to your safety sensitive position. These tests are also observed. An employee working a safety sensitive position must have no less than 6 follow-up tests during the first year at an interval defined by the SAP. Follow-up tests can continue for up to 5 years after the return-to-duty test was completed.
An employer, if they suspect you of being under the influence of banned substances while on the job, may conduct a reasonable suspicion test. Based on documented behavior, smell or activity, the employer can choose to have an employee tested while on the job. Usually these tests are conducted on the job site, during the work shift.
For example: I was called to an employers facility for an employee who was suspected of being under the influence of alcohol. The call came at the beginning of his shift - 11:00 pm. I arrived at about 11:30 pm and tested the employee using an evidential breathalyzer. The employee was found to be over 0.23 BAC, almost 3 times the legal limit for driving. The employer fired the employee, took his car keys from him and called a cab to take the employee home. The employee came back the following day ranting and raving about how he was going to sue the employer and had his lawyer on the phone, bla, bla, bla. Bottom line, an evidential breath test or confirmed drug test is defensible for an employer in court if done properly. You can fight it, but you probably won't win. You will only succeed in spending your money and time.
Bottom line: Don't show up for work stoned, drunk or under the influence of any other banned substance.
These tests are done strictly to comply with government or association guidelines and regulations. Some trade associations like skilled labor unions, trade consortiums or government entities require an employer to give all employees working certain jobs a drug test annually. For instance, on your anniversary date with the Millwrights Union, you are required each year to have a negative drug test. You must carry a card while at certain jobs identifying your anniversary date of the test and the fact that you tested negative.
Post-Accident or Near Miss
Having an accident at work is stressful, especially of someone is hurt as a result of the accident. All of a sudden, you are subject to drug and/or alcohol testing. This is done for a couple of reasons:
1. To reduce the possibility of a similar incident occurring by eliminating illegal or banned substance use as a cause.
2. To reduce the company liability for a medical claims incident.
If you are involved in an accident and you have a medical claim with a workers' compensation insurance carrier, and you are found to be positive for a controlled substance or alcohol on a test, the employer may not be liable for your injury. The burden of proof then shifts to you to prove that the banned substance or alcohol use did not contribute in any way to the cause of the accident.
For example: Say you were hit by a fork lift in a warehouse where you are employed as a laborer. You filed a medical claim for your broken leg and also filed a claim for lost wages. Your employer conducted a drug or alcohol test on you and you were found positive for THC. Workers' Compensation Insurance might pay for the medical bills, but probably will not pay for your claim for lost wages, and the company's experience rating will not be charged with the accident. That means that the company's insurance rates will not be affected by your accident because it is assumed to be your fault. That is, unless you can prove that you would have been hit by that fork lift whether you use pot or not. You must be able to prove that the use of marijuana did not cause you to lose concentration on your surroundings; cause you to fail to hear the approaching fork lift; and did not affect your reflexes making you unable to avoid being hit by the fork lift. That is a pretty hard thing to prove.
FYI: An employer cannot take urine from an unconscious individual. You must be able to give consent or refuse a test as you see fit. Even if you are catheterized, a medical professional cannot take urine from you while you are unconscious or if you do not give permission. Just keep in mind that a refusal to submit to a drug test is considered a positive drug test.
Probation or Parole
Almost everyone who has been arrested and/or convicted of a drug offense and placed on probation or parole will be regularly drug tested. Even some of you who were arrested and/or convicted of an offense not related to illegal substances may be subjected to regular drug tests while on probation or parole.
These tests are almost always observed or at least monitored and usually given by your parole/probation officer during your weekly or monthly visits. The good thing is; because they are regular, you have a good idea when they will be done. You also have the ability to control the outcome of these tests. Don't use illegal substances while on probation or parole and you will have no worries what-so-ever about failing a drug test. Not smoking at home is much, much better than not smoking in jail
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